Distributing Corrective Justice

Abstract Gardner observes that certain “problems of distributive justice … come into being only because the law of torts exists.” First, there is the question whether the institutionalization of corrective justice has been done justly. Thus, the question whether the law should give tort-law recognition to a type of wrong is a question of distributive justice. Second, corrective justice makes it the case that the parties to a tort suit may face a question of distributive justice between themselves. The defendant’s wrong is something that, by virtue of corrective justice, ought to be righted. But the law’s determination about how losses arising from the wrong are to be shared may be shaped by distributive considerations. Chapter 7 argues that these observations do not support Gardner’s idea that “corrective justice in tort law enjoys some kind of explanatory priority.” If substantive rather than formal equality is the foundational value, then considerations of substantive equality ought to govern both the distribution of entitlements and the law’s response to infringements of those entitlements. The result is that the value of substantive equality will have normative priority that makes it challenging to view tort litigation as doing corrective justice except when the background conditions of the polity are close to the ideal.